Filed: Jan. 12, 2018
Latest Update: Jan. 12, 2018
Summary: ORDER ALLISON CLAIRE , Magistrate Judge . Plaintiff Rowland Gene Perry commenced this social security action on May 23, 2016. ECF Nos. 1-2. 1 On July 25, 2017, the court granted plaintiff's motion for summary judgment, denied the Commissioner's cross-motion for summary judgment, remanded the case for an immediate award of benefits, and entered judgment for plaintiff. ECF Nos. 30, 31. Presently pending before the court is plaintiff's motion for attorneys' fees pursuant to the Equal Access t
Summary: ORDER ALLISON CLAIRE , Magistrate Judge . Plaintiff Rowland Gene Perry commenced this social security action on May 23, 2016. ECF Nos. 1-2. 1 On July 25, 2017, the court granted plaintiff's motion for summary judgment, denied the Commissioner's cross-motion for summary judgment, remanded the case for an immediate award of benefits, and entered judgment for plaintiff. ECF Nos. 30, 31. Presently pending before the court is plaintiff's motion for attorneys' fees pursuant to the Equal Access to..
More
ORDER
ALLISON CLAIRE, Magistrate Judge.
Plaintiff Rowland Gene Perry commenced this social security action on May 23, 2016. ECF Nos. 1-2.1 On July 25, 2017, the court granted plaintiff's motion for summary judgment, denied the Commissioner's cross-motion for summary judgment, remanded the case for an immediate award of benefits, and entered judgment for plaintiff. ECF Nos. 30, 31. Presently pending before the court is plaintiff's motion for attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"). ECF No. 32. The court gave the commissioner a period of time to oppose the motion if it wished to do so, and the commissioner did not oppose the motion. ECF No. 33. After considering plaintiff's briefing and the applicable law, the court grants plaintiff's motion for EAJA fees.
The EAJA provides, in part, that:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.
The court, in its discretion may reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.
28 U.S.C. § 2412(d)(1)(A)-(C).
Here, the Commissioner does not dispute that plaintiff is a prevailing party, because he successfully obtained a remand for further proceedings under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993). Furthermore, plaintiff's application for EAJA fees is timely, because it was filed within thirty days of final judgment in this action.2
The commissioner does not argue that its position was substantially justified.
Therefore, having concluded that the Commissioner's position was not substantially justified, and that there are no other special circumstances that would make an award of EAJA fees unjust, the court finds that plaintiff is entitled to an award of fees pursuant to the EAJA.
The EAJA directs the court to award a reasonable fee. 28 U.S.C. § 2412(d)(2)(A). In determining whether a fee is reasonable, the court considers the reasonable hourly rate, the hours expended, and the results obtained. See Commissioner, INS v. Jean, 496 U.S. 154, 163 (1990); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir. 1998).
In considering a reasonable rate for attorneys' fees, an increase in the statutory rate of $125 may be justified to account for increases in the cost of living. See Sorenson v. Mink, 239 F.3d 1140, 1148 (9th Cir. 2001). The cost of living adjustment to the statutory cap is computed by multiplying the statutory cap by the consumer price index for urban consumers for the year in which the fees were earned, then dividing by the consumer price index figure on the date that the cap was imposed by Congress. Id. at 1148-49; see also Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005).3 The national, rather than local, change in cost of living should be applied to adjust the EAJA rate cap because "if Congress had wanted to allow for cost of living adjustments in a particular region or city, it could have done so in the statute." Stewart v. Sullivan, 810 F.Supp. 1102, 1107 (D. Haw. 1993).
The Commissioner does not oppose plaintiff's requested rate. Plaintiff submitted a timesheet, with entries broken down by various tasks performed related to the case, showing that plaintiff's counsel spent 28.7 hours on this case, at a cost-of-living adjusted rate of $192.68 (2016 federal EAJA rage), for a total fee request of $5,529.91. ECF No. 32-2 at 2-3. After an independent review of the time entries, the court finds the amount of time spent by plaintiff's counsel to be reasonable. In light of the fact that plaintiff obtained a favorable judgment remanding the case for further administrative proceedings, the amount of fees sought is consistent with the result obtained.
Therefore, the court will award plaintiff EAJA attorneys' fees in the full amount of $5,529.91. The court notes that plaintiff has executed an assignment of EAJA fees to plaintiff's counsel. (ECF No. 32-1 at 3.) However, the EAJA award must be made by this court to plaintiff, and not to counsel. See Astrue v. Ratliffe, 130 S.Ct. 2521 (2010). Nevertheless, if the government determines that plaintiff does not owe a federal debt that qualifies for offset, payment may be made in the name of plaintiff's attorney.
Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for attorneys' fees under the EAJA (ECF No. 32) is GRANTED.
2. Plaintiff is awarded attorneys' fees in the total amount of $5,529.91 pursuant to the EAJA. If the government determines that plaintiff does not owe a federal debt that qualifies for offset, payment may be made in the name of plaintiff's attorney.
IT IS SO ORDERED.
